Citation Nr: 0734918
Decision Date: 11/06/07 Archive Date: 11/19/07
DOCKET NO. 05-10 834 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependency and indemnity compensation (DIC)
under the provisions of 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. Olson, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Navy
from June 1966 to July 1988. He died in August 2003. The
appellant is the veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board or BVA) on appeal from a December 2003 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Columbia, South Carolina.
In February 2007, the appellant testified at a travel board
hearing before the undersigned acting Veterans Law Judge. A
transcript of that hearing is of record. At the February
2007 hearing, the appellant submitted additional evidence
directly to the Board accompanied by a signed written waiver
of the RO's initial consideration of this additional
evidence.
FINDINGS OF FACT
1. The veteran died in August 2003. The cause of death
listed on the death certificate was mucinous
cystadenocarcinoma of unknown primary.
2. At the time of the veteran's death, service connection
had been established for hypertension and postoperative
nephrostolithotomy, left ureteropelvic stone.
3. The medical evidence of record does not indicate that a
relationship exists between the veteran's service and his
death, to include consideration of his service-connected
disabilities; presumed herbicide exposure; claimed exposure
to radiation, contaminated soil, contaminated water,
contaminated dust, germs and bacteria; and claimed service-
related left radical orchiectomy and sleep disorder.
4. The decedent was not evaluated as totally disabled from
service-connected disabilities for 10 continuous years
immediately preceding his death, he was not rated totally
disabled continuously after his discharge from service for a
period of not less than 5 years immediately preceding death,
and he was not a former prisoner of war.
CONCLUSIONS OF LAW
1. Service connection for the cause of the veteran's death
is not warranted. 38 U.S.C.A. § 1310 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2006).
2. The criteria for entitlement to DIC benefits pursuant to
38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318
(West 2002); 38 C.F.R. § 3.22 (2006); Sabonis v. Brown, 6
Vet. App. 426 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the appellant or on her
behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.
Cir. 2000) (the Board must review the entire record, but does
not have to discuss each piece of evidence). The analysis
below focuses on the most salient and relevant evidence and
on what this evidence shows, or fails to show, on the claims.
The appellant must not assume that the Board has overlooked
pieces of evidence that are not explicitly discussed herein.
See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
I. Veterans Claims Assistance Act of 2000
Prior to initial adjudication of the veteran's claim, VA met
all statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326 (2007).
A letter dated in October 2003 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The appellant was aware that it was ultimately his
responsibility to give VA any evidence pertaining to the
claim. The October 2003 letter informed her that additional
information or evidence was needed to support her claim, and
asked her to send the information or evidence to VA. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II).
Since the Board has concluded that the preponderance of the
evidence is against the claim for service connection for the
cause of the veteran's death, any questions as to the
appropriate disability rating or effective date to be
assigned are rendered moot, and no further notice is needed.
See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The veteran's service medical records are in the claims file.
No additional VA or private medical records have been
identified. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There
is no indication in the record that any additional evidence,
relevant to the issues decided herein, is available and not
part of the claims file.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).
II. Service Connection
The applicant is seeking service connection for the cause of
the veteran's death. Entitlement to service connection for
the cause of a veteran's death is warranted when a disability
of service origin caused, hastened, or substantially and
materially
contributed to the veteran's death. 38 U.S.C.A. § 1310(b);
38 C.F.R. § 3.312. A veteran's death will be considered as
having been due to a service-connected disability when the
evidence establishes that such disability was either the
principal or a contributory cause of death. The principal
cause of death is one which, singly or jointly with some
other condition, was the immediate or underlying cause of
death or was etiologically related thereto. A contributory
cause of death is one that contributed substantially or
materially, combined to cause death, or aided or lent
assistance to the production of death. Id.
At the time of his death, the veteran was service connected
for hypertension and postoperative nephrostolithotomy, left
ureteropelvic stone with both disabilities rated as
noncompensable. The appellant essentially contends that
hypertension was an underlying cause of the veteran's death.
The death certificate shows that the veteran died in August
2003 due to mucinous cystadenocarcinoma of unknown primary.
The death certificate noted that an autopsy had been
performed but that the autopsy findings were not considered
in determining the cause of death.
An autopsy performed in August 2003 found (1) widespread
indolent, well differentiate solid, and papillary cystic well
differentiated adenocarcinoma; (2) direct and/or metastatic
involvement of liver, kidneys, abdominal lymph nodes,
mediastinum lymph nodes, lungs, and pancreas; (3)
serosanguineous fluid in both pleural cavities and in
abdominal cavity; (4) retroperitoneum filled by tumorous
mass; (5) large mass of mediastinum secondary to metastasis
from adenocarcinoma; (6) heart showed little coronary
atherosclerosis but did show evidence of hypertension and
there were some fibrosis and question of a myocardial fiber
cellular degeneration with vacuolization and eosinophilia;
(7) left kidney was intimately involved by tumor and was
difficult to examine; (8) generalized emaciation secondary to
adenocarcinoma; (9) marked lymphedema of legs bilaterally
felt secondary to obstruction of lymphatic spaces by tumor;
(10) mild arterionephrosclerosis; and (10) congested liver,
lungs, spleen, and kidney.
The examiner opined that the tumor was felt to most closely
represent a low grade, well differentiated, solid and
papillary adenocarcinoma arising from the pancreas with early
retroperitoneal lymph node metastasis finally extending to
other organs within the abdomen and involving the lymphatics
from the mediastinum and the lungs. The examiner also noted
that it was an unusual tumor normally found in young females.
Based on the evidence above, the Board cannot find that
either of the veteran's service-connected disabilities,
hypertension or postoperative nephrostolithotomy, left
ureterpelvic stone, played a role in the veteran's death as
neither of the disorders was listed on the veteran's death
certificate as contributing to his death. Although
hypertension was listed in the autopsy report, the veteran's
death, in the opinion of the death certificate certifier, was
mucinous cystadenocarcinoma, and the autopsy physician found
that the cancer began in the veteran's pancreas. The Board,
therefore, concludes that the evidence of record does not
establish that the veteran's service-connected disabilities
hastened, or substantially and materially contributed to the
veteran's death.
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2007).
The Board notes that the appellant does not contend that the
veteran had pancreatic cancer in service. Instead, the
appellant argues that the veteran was exposed to Agent
Orange, benzene, radiation, contaminated soil, contaminated
water, contaminated dust, germs and bacteria while in service
and that this caused the veteran's death.
Service connection may be established for a disability on the
basis of a presumption under the law that certain chronic
diseases manifesting themselves to a certain degree within a
certain time after service must have had their onset in
service. 38 U.S.C.A. §§ 1112, 1131 and 1137; 38 C.F.R.
§§ 3.303, 3.304, 3.307 and 3.309(a). Tumors can be service-
connected on such a basis. However, the first showing of any
tumor was not until December 1993, four and one-half years
after the appellant's discharge from service.
Service connection for disability claimed as due to exposure
to Agent Orange may be established by showing that the
claimant has a disease, listed in 38 C.F.R. § 3.309(e), that
is manifested within the applicable time period, or by
showing that the claimed disability is, in fact, causally
linked to such exposure. Combee v. Brown, 34 F.3d 1039, 1044
(Fed. Cir. 1994). Absent affirmative evidence to the
contrary, there is now a presumption of exposure to
herbicides (to include Agent Orange) for all veterans who
served in Vietnam during the Vietnam Era. See 38 U.S.C.A. §
1116(f) (West 2002 & Supp. 2006) and 38 C.F.R. §
3.307(a)(6)(iii)).
Here, the veteran served in Vietnam during the Vietnam Era.
However, pancreatic adenocarcinoma is not among the diseases
presumed to be associated with Agent Orange exposure. See 38
C.F.R. § 3.309(e). Thus, notwithstanding the fact that the
veteran served in Vietnam during the Vietnam era and is
presumed to have had Agent Orange exposure, service
connection for pancreatic adenocarcinoma, on a presumptive
basis as due to Agent Orange exposure, is not warranted.
The fact that the veteran is not entitled to presumptive
service connection under 38 C.F.R. § 3.307 (a)(6)(iii) does
not preclude an evaluation as to whether the veteran is
entitled to service connection on a direct basis under 38
C.F.R. § 3.303 or presumptive basis under 38 C.F.R. §§
3.307(a)(3), 3.309(a). As the Board concedes that the veteran
was exposed to an herbicide agent while in Vietnam, the
record must contain competent medical evidence of a current
disease process and competent medical evidence of a
relationship between the currently diagnosed disease process
and exposure to a herbicide agent while in military service.
In this case, the appellant clearly died from pancreatic
cancer. The remaining question, therefore, is whether there
is competent medical evidence of a relationship between the
pancreatic cancer and herbicide exposure.
In support of her claim, the appellant has submitted a
January 2007 letter from Dr. E.C.J. which stated, "[The
veteran] had a well differentiated adenocarcinoma of unknown
primary. He was seen by multiple physicians, including [Dr.
T.N.], a Heme-Oncologist ... [who] said that this was a very
unusual and indolent disease process. I strongly believe, as
did [Dr. T.N.], that this disease state was related to his
previous Agent Orange Exposure. ..."
In a January 2001 letter, Dr. T.F.N. Jr. stated that the
veteran had a well-differentiated papillary adenocarcinoma of
unknown primary and noted that it was a most unusual and
indolent disease. Dr. T.F.N. stated that he strongly
believed that it was related to the veteran's previous Agent
Orange exposure but that the hypothesis was impossible to
prove.
While Dr. E.C.J. stated that he believed that the veteran's
adenocarcinoma of unknown primary was related to the
veteran's herbicide exposure and Dr. T.F.N. stated that he
strongly believed that the veteran's adenocarcinoma was
related to the veteran's herbicide exposure, the Board finds
this evidence insufficient to establish a linkage between the
veteran's pancreatic cancer and his presumed herbicide
exposure. An assessment or opinion by a health care provider
is never conclusive and is not entitled to absolute
deference, and the courts have provided guidance for weighing
medical evidence. They have held, for example, that a medical
opinion based on speculation, without supporting clinical
data or other rationale, does not provide the required degree
of medical certainty. Bloom v. West, 12 Vet. App. 185, 187
(1999). In this case, both opinions appear to be based on
speculation and are not supported by any rationale. Further,
Dr. E.C.J.'s opinion, written after the veteran's death, does
not acknowledge the autopsy pathology report physician's
opinion that the adenocarcinoma originated in the pancreas;
instead Dr. E.C.J. refers to the veteran's cancer as of
unknown primary.
It is also noteworthy to mention that the diseases listed at
38 C.F.R. § 3.309(e) are based on findings provided from
scientific data furnished by the National Academy of Sciences
(NAS). The NAS conducts studies to "summarize the scientific
evidence concerning the association between exposure to
herbicides used in support of military operations in Vietnam
during the Vietnam era and each disease suspected to be
associated with such exposure." 64 Fed. Reg. 59,232-59,243
(Nov. 2, 1999). Reports from NAS are submitted at two-year
intervals to reflect the most recent findings. Based on
input from the NAS reports, Congress amends the statutory
provisions of the Agent Orange Act found at 38 U.S.C.A. §
1116 and the Secretary promulgates the necessary regulatory
changes to reflect the latest additions of diseases shown to
be associated with exposure to herbicides.
Other than the fact that the veteran's adenocarcinoma was a
very unusual and indolent process, the veteran's physicians
provided no substantive supporting rationale as to why the
veteran's exposure to Agent Orange in Vietnam is the genesis
for his pancreatic adenocarcinoma, and neither physician
cited to any other body of literature or medical statistical
analysis. The Board finds that the private physicians'
opinions do not provide a supportable basis for service
connection on a direct basis nor do they place the evidence
in equipoise. Thus, the Board concludes that the veteran's
presumed exposure to Agent Orange did not hasten, or
substantially and materially contributed to the veteran's
death.
With respect to the appellant's contention that the veteran
was exposed to radiation while in service, and more
specifically that while serving in Vietnam, he was exposed to
two bomb explosions, the Board notes that the appellant does
not contend that the veteran was exposed to ionizing
radiation. The Board acknowledges that cancer of the
pancreas is among the types of diseases listed at 38 C.F.R. §
3.309(d)(2) subject to presumptive service connection in
radiation-exposed veterans, and it is also listed under 38
C.F.R. § 3.311 (b)(2) as a radiogenic disease. However,
these regulations pertain to ionizing radiation. Ionizing
radiation is radiation sufficiently energetic to dislodge
electrons from an atom, and claims generally involve exposure
through participation in nuclear weapons testing, presence at
certain sites following the detonation of a nuclear bomb or
the production of nuclear material, service aboard nuclear
submarines or even medical procedures involving radiation
therapy and x-ray examinations.
Clearly, the veteran did not participate in atmospheric
testing if stationed in Vietnam. See 38 C.F.R.
§ 3.309(d)(3); 3.311(a)(2)(i). Additionally, he was not an
occupier of Hiroshima/Nagasaki. See 38 C.F.R.
§ 3.311(a)(2)(ii). The Board notes that the only instances
that the United States used a nuclear weapon for war purposes
was Hiroshima/Nagasaki. Nuclear weapons were not used during
the Vietnam War, thus any radiation that the veteran would
have been exposed to during the two alleged bomb blasts,
would not have been ionizing radiation. Thus, the provisions
of 38 C.F.R. §§ 3.309(d) and 3.311 are not for application.
The Board now turns to the final remaining issue of whether
service connection for the cause of the veteran's death is
warranted based upon direct causation, including as secondary
to exposure to radiation, benzene, contaminated soil,
contaminated water, or contaminated dust, germs and bacteria.
The service medical records are absent complaints, findings
or diagnoses of any cancer during service. On the clinical
examination for retirement from service, all of the veteran's
systems except for the lower extremities which supported a
finding of bilateral knee crepitus, were evaluated as normal.
In addition, on the Report of Medical History completed by
the veteran in conjunction with his retirement physical, he
denied ever having tumor, growth, cyst, or cancer. Thus,
there is no medical evidence that shows that the veteran
suffered from pancreatic cancer during service.
In addition, there is no evidence which demonstrates that the
veteran was exposed to radiation, benzene, contaminated soil,
contaminated water, or contaminated dust as a result of his
military duties.
With respect to the appellant's claim that the veteran was
exposed to germs and bacteria during service, the Board
acknowledges that in service the veteran was described as
"positive IPPD converter". The veteran's retirement
examination noted that the veteran was treated with NIH for
one year from 1985 to 1986 for positive TB skin test.
However, at no time in service was the veteran described as
suffering from active tuberculosis. As of the time of the
retirement examination, it was noted that the veteran
experienced no problems since, CNCS (no complications, no
sequelae). Nor were there any clinical manifestations of
tuberculosis noted.
The service medical records also indicate that in 1967 and
1972 the veteran was diagnosed with gonorrhea, in 1977 and
1986 with otitis externa, in 1982 with a staphylococcus
aureus, in 1984 with rhinitis and an ear infection. However,
the veteran's retirement examination report noted that with
respect to the two episodes of gonorrhea, he was treated with
penicillin with good results and had no problems since, NCNS.
As noted above, on the clinical examination for retirement
from service, all of the veteran's systems except for the
lower extremities which supported a finding of bilateral knee
crepitus, were evaluated as normal.
Alternatively, when a chronic disease is not present during
service, service connection may be established under
38 C.F.R. § 3.303(b) by evidence of continuity of
symptomatology. Such evidence is lacking here. In light of
the lack of any relevant history reported between July 1988
and December 1993, service connection is not warranted under
38 C.F.R. § 3.303(b).
When a disease is first diagnosed after service, service
connection can still be granted for that condition if the
evidence shows it was incurred in service. 38 C.F.R.
§ 3.303(d). To prevail on the issue of service connection
there must be medical evidence of a current disability;
medical evidence, or in certain circumstances, lay evidence
of in-service occurrence or aggravation of a disease or
injury; and medical evidence of a nexus between an in-service
injury or disease and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12
Vet App. 341, 346 (1999). In this case, the veteran died
from pancreatic cancer. The remaining question, therefore,
is whether there is medical evidence of a relationship
between the pancreatic cancer and the veteran's military
service.
However, no medical professional has ever related the
veteran's pancreatic cancer to the veteran's military
service, including exposure to radiation, contaminated soil,
contaminated water, or contaminated dust, germs and bacteria.
Thus, there is no competent medical evidence that exposure to
radiation, contaminated soil, contaminated water, or
contaminated dust, germs and bacteria hastened, or
substantially and materially contributed to the veteran's
death. As noted above, the two medical opinions submitted by
the appellant in support of her claim related the veteran's
cancer to exposure to Agent Orange.
With respect to the appellant's contention that the veteran
was exposed to benzene during service as a Jet Engine
Specialist, there is a complete absence of any competent
medical or other evidence on file which in any way supports
this argument. There is simply no objective evidence
demonstrating that the veteran had any form of prolonged
exposure to benzene during service. Although the veteran may
indeed have had some degree of exposure to benzene, no
exposure of any kind is actually documented, and the
appellant has not submitted any competent medical statement
indicating that such possible exposure as likely as not was
the causal origin of the veteran's subsequent development of
pancreatic cancer. Thus, even if the veteran was exposed to
benzene as a result of his service duties, the Board finds
that there is no probative nexus between exposure to benzene
and his development of cancer of the pancreas. Thus, there
is no competent medical evidence that exposure to benzene
hastened, or substantially and materially contributed to the
veteran's death.
The Board also notes that the appellant's contentions include
that a left radical orchiectomy was due to venereal disease
contracted while in service and contributed to the veteran's
death and that a sleep disorder contributed to the veteran's
death.
With respect to the issue of service connection for removal
of left testicle, the record is absent any complaints,
findings or diagnoses of any testicular problems in service
and no medical professional has ever related the necessity of
removing the veteran's left testicle to the veteran's
military service, including the two in-service episodes of
gonorrhea. The Board notes that an operative report dated in
January 1994 showed that the veteran underwent a radical left
orchiectomy and left retroperitoneal exploration with
incisional biopsy of left retroperitoneal mass. The
pathology report showed papillary adenocarcinoma of the
retroperitoneal lymph nodes but no actual malignancy of the
testicle, only focal calcification. Thus, there is no
competent medical evidence that the removal of the left
testicle was either related to the veteran's service or
hastened, or substantially and materially
contributed to the veteran's death.
With respect to a sleep disorder, the Board notes that no
medical professional has related a sleep disorder to the
veteran's pancreatic cancer. Thus, there is no competent
medical evidence that a sleep disorder hastened, or
substantially and materially contributed to the veteran's
death.
The Board does not doubt the sincerity of the appellant's
beliefs and it empathizes with her loss; however, there is no
competent medical evidence to support her contention that the
veteran's death was related to service. As there is no
indication that the appellant is trained in the field of
medicine, she is not competent to offer an opinion regarding
any medical causation leading to the veteran's death. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
III. DIC benefits
If the decedent's death is not determined to be service
connected, as found by the Board in the preceding section, a
surviving spouse may still be entitled to DIC benefits.
Benefits are payable to the surviving spouse where it is
shown that the veteran's death was not the result of willful
misconduct, and he (1) was continuously rated totally
disabled for the 10 years immediately preceding death; or (2)
was rated totally disabled upon separation from service, was
continuously so rated, and died more than five but less than
ten years after separation from service; or (3) the veteran
was a former prisoner of war who died after September 30,
1999, and the disability was continuously rated totally
disabling for a period of not less than one year immediately
preceding death. 38 U.S.C.A. § 1318(b). The implementing
regulation is at 38 C.F.R. § 3.22 (2006).
However, as the decedent was not a prisoner of war, he died
more than 10 years following his separation from active
service, and he was not receiving compensation at the 100
percent rate for the 10-year period immediately preceding his
death, entitlement to dependency and indemnity compensation
under the provisions of 38 U.S.C.A. § 1318 is not warranted
because of the absence of legal merit. See Sabonis v. Brown,
6 Vet. App. 426 (1994).
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
Entitlement to dependency and indemnity compensation under
the provisions of 38 U.S.C.A. § 1318 is denied.
____________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs